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KARNATAKA HIGH COURT
V. Srishananda, J.
H. Mahadev – Appellant
versus
K.N. Rajamma Since
Dead by her Lrs and Ors. – Respondents
Miscellaneous Second Appeal No.24 of 2019 (RO)
Decided on 27.8.2024
Indian Evidence Act, 1872 – Section 90 [Bharatiya Sakshya Adhiniyam, 2023 – Section 92] – Presumption as to documents 30 years old – Presumption is with regard to proper execution of document which is 30 years old and not proof of execution thereof – Requirement to invoke Section 90 of Evidence Act is that document is in hand writing of executant – In case on hand, since original gift deed is not produced before Court, plaintiff lost his chance to question genuineness and veracity of gift deed – Presumption as is available under Section 90 of Evidence Act could not have been per se made applicable so as to deny demand for proof of gift deed. (Paras 29, 30 and 31)
Result: Miscellaneous Second Appeal dismissed.
JUDGMENT (ORAL)
Heard Sri G.S.Venkat Subbarao, learned counsel for the appellant and Sri Harish H.V., learned counsel for respondent No.1.
2. Defendant No.1 is in appeal challenging the Judgment passed in R.A.No.3/2009 dated 08th February 2019 on the file of the Prl. Senior Civil Judge and JMFC, Madhugiri, setting aside the judgment and decree dismissing the suit in O.S.No.96/2000 dated 22nd November 2008 on the file of the Civil Judge (Jr.Dn.) and JMFC, Koratagere, filed by the respondent No.1 herein.
3. Facts in brief which are utmost necessary for disposal of the appeal are as under:
Plaintiff filed a suit in O.S.No.96/2000 for the relief of declaration declaring that she is the owner of the immovable property which is a site situated in Kumbara Street, Koratagere Town, bearing Koratagere Pattana Panchayath Khatha No.1623/1465, measuring 30 ft. x 40 ft. bounded on the East by Road, West by Site of G.S.Lingappa, North by House of Chandrahasa and South by road.
4. Plaintiff further claimed that Appaiahanna is the grandfather of the plaintiff and he had only daughter by name Gangamma who is the mother of the plaintiff. According to plaintiff, suit property belonged to Appaiahanna and after his death, same was succeeded by Gangamma being his only daughter and said Gangamma was in enjoyment of the same.
5. It is further case of the plaintiff that after the death of Gangamma, plaintiff being the only daughter of Gangamma, succeeded to the suit property and also other properties of Gangamma and she is in possession and enjoyment of the same.
6. It is further case of the plaintiff that when the matter stood thus, in the month of July 2003, suit house collapsed on account of heavy rain. Thereafter, property has become a vacant site. It is also contended by plaintiff that she is the owner of 04 feet space towards eastern side of the suit property, in addition to the suit schedule dimension.
7. Plaintiff further contended that defendants being utter strangers to the suit property, took advantage of helplessness of the plaintiff, attempted to interfere with the possession of the suit property. Therefore, suit for declaration and injunction came to be filed.
8. Pursuant to the suit summons, defendants entered appearance and defendant No.2 filed the written statement denying the plaint averments except admitting that the suit property belonged to Appaiahanna and he having only daughter.
9. It is the specific case of defendant No.2 that after the death of Appaiahanna, Gangamma bequeathed the suit property along with land in Sy.No.25 of Hanumanthapura village to the second defendant under registered gift deed dated 26.02.1964 and from the date of gift, it is the second defendant who is the owner of the property.
10. It is also contended by second defendant that second defendant enjoyed the suit property till it was alienated in favour of first defendant on 14.02.1996 through registered sale deed and therefore, it is defendant No.1 who is in possession and enjoyment of the suit property as on the date of filing of the written statement and therefore, there is no question of any interference nor there was any cause of action.
11. Based on the rival contentions of the parties, four issues were framed initially by the Trial Court and two more additional issues.
12. Parties joined the issues and placed both oral and documentary evidence on record.
13. The Trial Court, after considering the oral and documentary evidence on record, dismissed the suit of the plaintiff holding that the gift deed is valid and therefore, plaintiff has no right, title and interest over the suit property as her mother Gangamma has already executed the registered gift deed in favour of second defendant who inturn sold the property in favour of first defendant.
14. Being aggrieved by the dismissal of the suit, plaintiff filed an appeal before the Appellate Court in R.A. No.3/2009.
15. Learned Judge in the First Appellate Court, after considering the rival contentions of
Presumption as to documents 30 years old – Presumption is with regard to proper execution of document which is 30 years old and not proof of execution thereof.
The presumption under Section 90 of the Indian Evidence Act requires original documents for establishing ownership, and secondary evidence alone is insufficient.
The main legal point established is the requirement to prove the gift deed and its contents, acceptance of the gift, and the permissive nature of possession in property disputes.
Proof of gift-deed – Contents of gift deed can be treated as proved when executant and donor of gift deed examined himself as a witness.
A legal right to a permanent injunction exists to protect lawful possession from interference, irrespective of ownership claims.
A gift under Sec. 123 of the Transfer of Property Act requires acceptance by the donee and the original gift deed must be produced to establish its validity; failure to do so undermines the claim of ....
Section 111 of Evidence Act States as proof of good faith in transactions where one party is in relation of active confidence.
The court affirmed the validity of a gift deed executed by a minor's grandmother, ruling it was properly attested and accepted by the minor's father as her natural guardian.
The plaintiff must succeed on his own strength and not on the weaknesses of the defendant.
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